You can limit domestic partner benefits to same-sex couples

If you're thinking about extending benefits to employees' domestic partners, be prepared to defend any limits.

When the Chicago school board decided to extend spousal health benefits to domestic partners in 1999, Milagros Irizarry and her partner met all the criteria but one, they weren't a same-sex couple.

Although they had lived together for more than 20 years and had two adult children, the board had restricted the benefits to only same-sex partners. Irizarry sued, claiming the policy violated her equal protection rights under the Constitution.

The school board cited two reasons for offering the benefits only to same-sex couples: homosexual marriage isn't possible in Illinois, and it wanted to attract teachers who could be role models and provide support for homosexual students.

In the first 18 months, only nine out of 45,000 school employees signed up for the benefits. But the school board argued that opening up the benefits to mixed-sex couples could add thousands to the benefit rolls and raise costs.

A federal appeal court was sympathetic to the school board's argument and found enough rationale to uphold the policy. (Irizarry v. Board of Education of Chicago, No-00-3216, 7th Cir., 2001)

This isn't the first such ruling. A federal court in New York said a domestic partner plan didn't equal sex discrimination against an unmarried man with a female partner, because an unmarried woman with a male partner also would be denied benefits.

Domestic benefits rising

The number of employers offering domestic partner benefits has leapt in recent years. The Society for Human Resource Management says 16 percent of the employers it surveyed are offering benefits to same-sex partners, and 25 percent offer them to opposite-sex partners. In 1997, only 6 percent offered domestic partner benefits.

The Human Rights Campaign says more than 100 of the Fortune 500 firms offer domestic partner benefits.